January 14, 2010
In an 87-page opinion released this week, Pension Committee of the Univ. of Montreal Pension Plan, et al., v. Banc of America Securities, LLC, et al. (“Pension Committee”), Judge Shira Scheindlin of the Southern District of New York granted sanctions against 13 plaintiffs for their failure to properly preserve, collect and produce electronic documents. Judge Scheindlin subtitled the opinion “Zubulake Revisited: Six Years Later.” She observed that, six years after the Court’s series of ground-breaking Zubulake opinions and decades after courts first addressed the discovery of electronic evidence, litigants are still conducting electronic discovery in an “ignorant and indifferent fashion.” The Court then reviewed the steps a party is required to take to properly preserve evidence, and provided a legal framework for determining the severity of sanctions that may be issued against parties who fail to take those steps.
This Client Alert highlights the elements of Pension Committee that are likely to have the greatest impact on current e-Discovery practice and identifies a number of Practice Tips resulting from this decision.